FAA remedial order nears commencement

In 2017 in Smith v Lancashire the Court of Appeal held that exclusion of a deceased’s co-habiting partner from entitlement to bereavement damages under s1A of the Fatal Accidents Act 1976 breached European Convention rights. That outcome placed the government under an obligation to amend the Act (detailed in this post back in February). This specific and limited change has just moved closer, with the necessary draft order being approved in the House of Lords last week and expected to take effect soon.

Peers approved the draft order (available here) on 3 September without a vote and after a short but informative debate which covered wider questions of compensation following wrongful death.

The discussion could be summarised fairly as opposition Peers noting the restricted nature of the change while arguing for broader reform of the Act, but with the Minister sticking to the brief of doing only the minimum needed to address the narrow incompatibility highlighted by the Smith case. This tension was highlighted in our earlier blog.

It is fair to say that the following opening remarks by the Minister, Baroness Scott, about the purpose and legal nature of the award are factually and technically accurate.

“…the bereavement damages award is, and was only ever intended to be, a token award payable to a limited category of people. ​When the award was first introduced in the Administration of Justice Act 1982, it was acknowledged by Parliament that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. Similarly, the limits on the categories of people able to claim are not intended to imply that people outside those groups would not be severely emotionally affected by the death in question.”

Nevertheless, seen in the context of relatives bringing a claim follow a death the reference to “a token award” (fortunately, the word mere wasn’t used) rather runs the risk of being perceived as insensitive.

Lord Thomas of Gresford (Lib Dem) alluded to that possibility, noting that “The present lump sum system surely raises in the mind of the widow that the state values the life of her husband at a derisory sum.” Baroness Jones (Green) went a little further, stating that “The simple truth is that the Fatal Accidents Act is not fit for the 21st century. It became law more than 40 years ago in 1976, which was a different era of relationships and family values. Today’s remedial order is nothing but a sticking plaster to cover one issue raised by the courts. The Act still refers to and makes a distinction between legitimate and “illegitimate” children. Such wording was probably all right in the 1970s [but] statutes should not enforce archaic and, frankly, offensive language and the Government have to amend this.”

Whether or not you agree with those sentiments, there looks to be little prospect of legislative reform to the statute. Although Lord Falconer (Lab) described it as “an archaic piece of legislation” and talked of “the need for full-scale reform of the Fatal Accidents Act 1976”, the reality is that no recent government* has shown any appetite for doing so despite a thorough analysis and express recommendations from the Law Commission over two decades ago. Furthermore, the Ministry of Justice pushed back strongly when many of the issues teased out by the Law Commission were raised again by the Select Committee which reported on the present limited reform.

Closing the short debate, Baroness Scott repeated more or less verbatim her remarks about the “token” nature of the bereavement award and the impossibility of quantifying grief in financial terms. She did offer to take Peers’ views on the “inappropriate language” of the Act back to the Ministry; something which seems much more cosmetic than substantive. It seemed to me that she shut the door pretty firmly on the wider reform raised by Peers in concluding that “the current pressure on the legislative timetable means that there is little prospect of using primary legislation to make such a change.”

Updated 16 September 2020: the remedial order was made yesterday, 15 September and will come into effect on 6 October 2020, meaning that the change outlined here will apply to causes of action which accrue – for which read fatal accidents occurring – on or after that date.

* The Coalition Government elected in 2010 chose not to proceed with a Civil Law Reform Bill first published by its Labour predecessor and which would, if introduced, have addressed some wider reform of the FAA.

Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com

Leave a Reply